Incapacity Planning, Guardianship and Special Needs Planning
Advanced Planning for Illness and Disability
Sickness and incapacity is, unfortunately, inevitable in life. The unknowable is the what, when and how. Even though you cannot answer these questions at present, you can take affirmative steps to ensure that your health care wishes are known and that your financial, legal and business affairs are handled appropriately and by the person or persons that you believe will faithfully carry out their duty.
A Health Care Proxy and a Living Will address medical care; a Power of Attorney addresses the financial and legal aspects of your life. Collectively these documents are known as “Advance Directives.” They will give you a voice when you can no longer speak for yourself.
And The Law Offices of Veronica Escobar can prepare those documents for you and give you that security.
And There is also an answer for when you do not plan ahead: Guardianship
As well intentioned as people may be, they may not always think ahead and plan. In the event a loved did not prepare Advance Directives and becomes incapacitated, a Guardianship (also known as an “Article 81 proceeding”) would need to be pursued in Supreme Court, in order for a Court to determine if another person needs to make decisions for the loved one and what types of decisions they will be.
The decision making authority would cover the person and/or their property and is specifically tailored to allow the Alleged Incapacitated Person (the name by which the affected person goes by in the Court, also shortened to “AIP”) as much autonomy as possible considering that person’s individual circumstances.
The Court will need to determine that the AIP cannot complete activities of daily living and/or is mentally impaired to the extent that he or she cannot make decisions. Or, alternatively, that the decisions they are making are placing them in danger and the AIP is unable to recognize the latter.
Veronica has over a decade of litigation experience and can capably represent you in these matters.
For the Most Beloved Members of our Families: Special Needs Planning
There may come a time when you, as a parent, are unable to care for your child who has special needs, either due to aging, incapacity or your own death. You may also want to financially provide for your child during your lifetime. Or you may be a family member or a loved one of a special needs individual and care about their well-being and future.
Many special needs children and adults qualify for government benefits. However these government benefits are means tested, which signifies that their income and resources are capped. Any income that they receive or any resources accumulated that place them above that cap reduces or eliminates their benefits.
However, there is something you or a loved one can do to protect them financially and to ensure their present and future quality of life: the creation of a Special Needs Trust (which is also known as a Supplemental Needs Trust), to supplement the life needs of the individual without affecting their government benefits.
Additionally, depending on the child’s special need they may never be in a position to make decisions for themselves as they enter adulthood. During their minority, a parent is able to make decisions for their child. However, once they reach the age of eighteen they are adults in the eyes of the law. The parents or family members of a special needs child should consider filing for their guardianship prior to their eighteenth birthday under Article 81 of New York State’s Mental Health Law. The latter will allow them to make decisions for the child well past their majority and ensure their personal and financial security.